One of my friends and I got into a discussion about affirmative action in law school. What quickly became apparent is that we had completely different visions of what the objective of law school affirmative actions programs were meant to do. My friend took the position that affirmative action programs were meant to give kids who come from disadvantaged backgrounds a boost in their application either because their test scores do not represent their true ability and/or they have a “unique experience” that would better the class. My position was that affirmative action programs are primarily implemented to ensure the legal profession has racial composition that is proportional to the population they service. AA programs probably are intended to do both, but which objective comes is more important makes all the difference.
If affirmative action programs are primarily implemented to benefit disadvantaged students, then I agree with my friend that racial-based affirmative action are probably not good policy. Socioeconomic class is a better proxy for disadvantagedness than race as socioeconomic class would exclude middle and upper-class minorities and allow impoverished whites to take advantage of affirmative action programs. But there’s a bigger problem with racial-based affirmative action program, the middle and upperclass only see the minorities that are part of the middle and upperclass (aka the people who “don’t need the boost”) get the benefits of the affirmative action boost. This was the case when I was a sophomore in HS. One girl, through completing a genealogy project, discovered she had some Argentinian roots and milked that fact to get into some schools that our school hadn’t sent anyone in years. (For reference, with all but a couple Ivys, my HS sent at least 4 or more people to all but a few Ivy-League schools). So when you have a lot ‘rich white kids’ complain about some minority ‘taking their spot,’ part of it is jealousy, but keep in mind how those rich white kids only see those people ‘who don’t deserve it’ benefit from the system.
On the other hand, if you view affirmative action as a way to help offset the underrepresentation of a racial group in the legal profession, then race-based affirmative action makes more sense. Our nation has a legal history of racial discrimination (against lots of minorities, not just blacks) and it doesn’t take a rocket scientist to figure out that only having white men in government and practicing law was a large factor in creating and preventing the elimination of discrimination against minorities. Given that racial discrimination is still prevalent in our society, I’m persuaded, but not fully convinced, that there’s an argument that implementing racial affirmative is needed to help end illegal forms of racial discrimination.
I believe that today minorities don’t need ‘one of their own’ to represent them in legal disputes. But I do think that are discriminated against are more likely to notice and empathize with victims of discrimination within their sociopolitical group. And maybe, this empathy makes them a better advocate than an ‘outsider.’ I’d like to think that our country is beyond that line of think, but when the leaders of major black, hispanic, Jewish, Muslim, Catholic, all are typically ‘one of their own,’ it’s a little hard to claim that. The point isn’t that a black person has the right to black lawyer; rather, it’s that the legal profession should not be structured that a minority has little chance of having the most zealous advocate available to represent them. Of course, a program with proportional employment as the objective would have lots of other problems (such as do you calculate the proper proportion by state, region, or nationally and does the calculation for proportionality differ between ‘national’ and ‘regional’ schools). On face though, the proposition doesn’t seem ridiculous.
Even if you could figure out to figure out the right way to implement such an employment focused affirmative-action program, I don’t think it would help the affirmative action debate. Sure there will always be people who hate affirmative action. However the larger problem is that there is no oversight mechanism to ensure law schools are not implementing quotas. And I’m not sure there should be someone peeking through admissions decisions and interfering with the admissions process. Institutions should maintain their ’sovereignty’ over who they deem worthy of admissions; it’s their program after all. I don’t know how you can create the image that affirmative action programs are not being used in a improper way–I don’t think you can. So I view affirmative action as a potentially good idea that will never gain the proper footing it deserves because institutions either choose not to implement ‘legitimate’ programs or can make their programs appear legitimate.
I’m sure someone is wondering why I didn’t touch on the argument that having a diverse student body is essential to a quality education, and thus racial-based affirmative action is OK. I don’t buy this argument. I think that everyone has experiences and that the black kid who faced intense racial discrimination his whole life has an equally compelling story as a white kid who battled through intense child abuse. Both are terrible situations that require great inner strength to overcome, but there is no reason why race is special. I suppose I don’t have a problem with allowing someone with lower test scores but an ‘extraordinary experience’ gain admittance to a school. It just seems that extraordinary experiences is code for ‘welcome blacks and hispanics,’ which gets you right back into the race debate.
